Appeal No. EAT/0127/03/ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 June 2003

Before
HIS HONOUR JUDGE J BURKE QC
MS J DRAKE
MR J HOUGHAM

MR L GALLOWAY	APPELLANT

BARNET ENFIELD & HARINGEY MENTAL HEALTH TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR L GALLOWAY
(the Appellant in person)

HIS HONOUR JUDGE J BURKE QC

1	This is the Preliminary Hearing of an appeal by Mr Galloway against the decision of the Employment Tribunal sitting at London (Central), chaired by Mr. Solomons and promulgated with Extended Reasons on 3rd January 2003.  By that decision the Tribunal dismissed Mr. Galloway’s case against his employers, the Barnet Enfield and Haringey Mental Health Trust, of race discrimination.  Mr. Galloway was and still is employed by the Trust.  He was at first employed as an electrician in October 1994; later, in 1996, he was promoted to a foreman’s position.

2	At the hearing before the Employment Tribunal, which took thirteen days of evidence and argument between April and September 2002, Counsel on both sides agreed a statement or schedule of issues which showed that Mr. Galloway complained of eleven specific acts or areas of conduct which acts or courses of conduct were, he claimed, racially discriminatory of him.  It was his case that they were part of a campaign directed against him on racial grounds.  The Tribunal, in their very detailed and manifestly careful and cogent decision of 24 pages and 78 paragraphs, addressed each of the eleven complaints individually in some detail and found that there had not been discrimination in the case of any one of them.  They also found that there was no campaign or practice against Mr. Galloway to bar his promotion, access to training or career development or to disadvantage him in any way.  Having made detailed findings of fact and reached conclusions on discrimination in the case of each of the eleven issues, the Tribunal was careful then to look back at what they describe as the general proposition advanced on behalf of Mr. Galloway so as to consider the picture as a whole and to see whether, looking at the picture as a whole, the case of race discrimination was made out.  They decided that it was not.  

3	In a telling paragraph, at paragraph 70, having reviewed the facts of each allegation and then looked at the position generally, the Tribunal said that on occasions Mr. Galloway did not obtain what he wanted from his employers; but on occasions he did.  When he did not, he saw that as an example of race discrimination and was not prepared to accept the explanations given by the Trust for, on occasions, saying “no” to his requests.  They said that the impression they had formed during the course of his evidence over several days was that Mr. Galloway was unable to accept that there might be any possible explanation other than race discrimination for any treatment from his employers which he regarded as disadvantageous.  

4	Mr. Galloway has addressed us this morning with care, courtesy and with, plainly, a deep feeling and, obviously, a wholly honest feeling of grievance about what has happened to him at the hands of his employers and about the result which the Employment Tribunal produced after this long period.  He has put forward in his Notice of Appeal five or six paragraphs which set out his grounds of appeal.   He has also sent to the Tribunal a document dated 19th May which sets out, in a further five numbered paragraphs what on the face of them are put as allegations of bias on the part of Tribunal.  

5	Mr. Galloway is no doubt aware, and if not, he should be aware from this judgment, that the Employment Appeal Tribunal is not able to re-litigate issues of fact which have already been determined by the Tribunal in any general way.  A great deal of what Mr. Galloway has complained about in the various documents which we have looked at and in the course of his submissions today amounts to a valiant and creditable attempt to seek to persuade us that the Tribunal either made errors in their findings of fact or failed to consider particular pieces of evidence which are not referred to in the decision;  but as we pointed out to Mr. Galloway during the course of his argument, we cannot interfere with findings of fact unless they are perverse.  

6	Mr. Galloway accepts that his Appeal is based on perversity.  He does not, (leaving aside bias for the moment) suggest that the Tribunal in any respect misdirected themselves as to any of the principles of law which they applied to the facts in determining his case.  We therefore have to consider (again leaving aside bias for the moment) whether, in any of the respects set out in the documents, there is an arguable case of perversity.  

7	We need, before turning to the individual points which Mr. Galloway has made, to say something about the document which alleges bias.  The complaints there made are in effect complaints about the way in which the Tribunal found the facts, either on the basis that they did not mention in their decision evidence which Mr. Galloway says should have been mentioned or that they found the facts in a way with which Mr. Galloway does not agree.  

8	Were there any arguable case of bias or even possibly arguable case of bias it would  be necessary for us, before making any decision as to whether the allegations of bias should go through to a full hearing, first of all to require Mr. Galloway to swear an affidavit pursuant to our procedures, secondly, to send that affidavit to the Chairman of the Tribunal for his comments and, thirdly, because the Respondents in this case, pursuant to an earlier order of this Appeal Tribunal, were given the opportunity to make comments upon Mr Galloway’s case, to send those further documents to the Respondents.  

9	However, we do not see that there is even the vaguest prospect of any of these allegations of bias succeeding.  They are not complaints about anything which the Tribunal allegedly did wrong save in so far as the Tribunal is said to have arrived at findings of fact with which Mr. Galloway disagrees or in respect of which he would say that the whole of the evidence is not mentioned in their Decision.  We see nothing by way of bias in any of that.  Mr. Galloway has indicated to us that he would like us to treat what is set out in the document alleging bias as additional grounds of appeal against the Tribunal’s Decision other than by way of a bias allegation and we will do so.  We make it clear that, in considering bias as we have, we are not of course looking for actual bias but looking to see whether the reasonable objective observer would have regarded there as being the real possibility of bias.  We do not think that it is arguable, having regard to what we have seen and read, that there is any prospect that the reasonable objective observer would reach that view.  

10	We therefore turn away from bias and back to the specific grounds of criticism of the Tribunal’s decision.  First of all Mr. Galloway submits that the employers in effect took his job away while he was off sick in 2000.  That is an issue which comes within, in particular, Issue 4 but is compendiously dealt with by the Tribunal as part of their dealing with Issues 4, 6, 8 and 9 together.  All of those matters concerned how Mr. Galloway was treated in relation to his job when he got back from his period of illness.  

11	It is suggested in the Notice of Appeal that the Tribunal failed to take into account that Mr Galloway’s job was reduced in status while he was away to the extent that job was eliminated or sought to be eliminated in a re-structuring.  Today Mr. Galloway has taken us to documents, which, he submits, show that the Tribunal did not properly examine or consider the effect on his job of what the employers were doing and that he had sought a re-grading which was refused.  This general complaint, is dealt with by the Tribunal extensively at pages 13 – 15 of their decision.  The Tribunal found that his job had not gone and that, when he returned to work after his sickness, he continued to work in his previous role.  Those are findings of fact which are not, in our judgment, arguably perverse.  

12	The question of the restructuring is specifically addressed by the Tribunal in paragraph 44 of their Decision.  The Tribunal found, having examined the allegations in full, that there was no disadvantaging of Mr. Galloway and that, if there was, any actions were not affected by considerations of race.  Those, too are findings of fact which were not, in our judgment, having considered everything Mr. Galloway has said or written, arguably perverse.  

13	The second point raised in the ground of appeal, which has been covered to some extent in Mr. Galloway’s oral submissions today is that he was not given proper opportunity, as he should have been under the Equal Opportunities Policy of the Trust, for promotion and training and career development.  The re-grading issue could be seen to be relevant to this part of the case as well.  Mr. Galloway has taken us to the Equal Opportunities Policy, has said that it was broken and has shown us that his application for leave to take part in a facilities management course was actually approved by his Managers; but he complains that the Trust had failed to fulfil a promise that he would be sponsored for his attendance on that course and permitted to have time off to attend it.  Again the Tribunal examined this in detail; they came to the conclusion that the course was not an appropriate course for Mr. Galloway and that, therefore, the employers were justified in not paying for or sponsoring his attendance on that course and in not giving him time off to attend it or work from it.  There was a comparison made with Mr Taylor who was allowed to go on a course and was supported in so doing.  The Tribunal found that that the more favourable treatment of Mr. Taylor as compared with Mr. Galloway was not on the basis of race; and in any event it is clear from what the Tribunal found that Mr. Taylor and Mr. Galloway were not like for like comparators.  The course on which Mr. Taylor went was one which the Tribunal thought was suitable for him.

14	Mr. Galloway has next taken us to Issue 3, the allegation that the employers threatened to cut Mr. Galloway’s wages while he was absent from work on the grounds of sickness.  This is a point which has been raised orally, is probably covered by the Notice of Appeal and is certainly raised in the bias document as we read it (and we have read all of it with care).  What Mr. Galloway says on this issue is that the employers investigated him while he was away from work on the basis that he was not really or genuinely off work sick, that they got a handwriting expert to look at his sickness certificates, that the NHS fraud body was involved and that this was all discriminatory treatment.

15	Unpleasant treatment undoubtedly it must have been for Mr. Galloway; but the question for the Tribunal was whether there was discrimination involved.  Mr. Galloway submits in this area as in others that there were documents which the Tribunal simply did not take into account and other evidence which the Tribunal did not take into account.  It is important to make it clear that the fact that a piece of evidence, either oral or documentary, is not mentioned in the decision does not mean that it was not taken into account.  The absence of any reference in the decision to a piece of evidence does not make it arguable that that piece of evidence was not taken into account; the reason for that is obvious; in a thirteen day case if the Tribunal had in their decision to set out each piece of evidence and explain whether they did or did not take it into account, every decision of the Tribunal would take days to write, days to read and days to examine; and the interests of justice would not be served.  Those are not the requirements made of an Employment Tribunal.  What the Employment Tribunal have to do is to set out the facts which they find and then show how they reason from those facts to their conclusions on the issues before them.  

16	What is clear from the Tribunal’s findings is that there was a gap or there were gaps in the sickness certification.  There were failures on the part of Mr. Galloway to contact his Manager, Mr. Wagman  On a number of occasions, Mr. Wagman tried to contact Mr Galloway by telephone; and on one occasion he went to his home.  On those occasions he received no reply.  Mr. Galloway says, “I don’t have to be at home all the time”; and that of course is right; but what the Tribunal were examining here is what the employers were doing; not what Mr Galloway was doing; and what the Tribunal have found is that the doubts of the employers were based on material which was before them and not based on discrimination.  

17	One particular point which is taken is that there was a witness who had allegedly said to the employer that Mr. Galloway had been working while he was sick.  That witness was actually called to give evidence at the Tribunal and said that he had not said any such thing.  The Tribunal do not refer to that evidence; but Mr. Galloway has accepted that they did not need to refer to it; and the reason why they did not need to refer to it is that they did not rely upon that evidence in coming to the conclusion that they did as to what the employers were doing and why they were doing it at this stage.  They relied upon the gaps in and lateness of some of the medical certificates, Mr. Galloway’s failure to contact Mr. Wagman and his not being in when telephoned or when Mr. Wagman on one occasion went to his house; see paragraph 39 of the decision.  In that context the absence of any reference to that one piece of disputed evidence does not, in our judgment, give rise to any arguable error of law.

18	Mr. Galloway, in the fourth paragraph of the Notice of Appeal, submits that one of the employer’s witnesses said that he had actually witnessed racial harassment of Mr Galloway; and that has been mentioned again to us today by Mr. Galloway.  It is certainly the case that the Tribunal do not refer to any such evidence; but if such evidence was given, it would be wholly remarkable if, out of the welter of disputed evidence with which the Tribunal had to deal, they did not remember and feel it necessary to mention that piece of evidence.  There must be a very considerable doubt as to whether Mr. Galloway’s recollection or interpretation of what was said was correct for that reason alone.  But it goes a little further than that; we asked Mr. Galloway whether, when that evidence was given, it was taken up by his Counsel; and his answer was that it was not and that his Counsel did not take it any further.  It is simply unarguable, in our judgment, that if such evidence was actually given it would be omitted by both the Tribunal and in their decision and by Counsel for Mr Galloway in final submissions.  It would have been such a prominent piece of evidence that that simply could not have happened; and therefore we do not think that any arguable point of appeal rises here either.  

19	We think we have dealt with each of the matters addressed in the original Notice of Appeal but we have not actually referred to the point made in the fourth paragraph, about the treatment by Mr. Bascombe and Mr. Boyle of Mr. Galloway.  That of course was not within the eleven issues identified by the Tribunal; but it was dealt with as background; the Tribunal found the facts as to that treatment too; and we see no arguable ground of appeal arising out of that or out of the last paragraph  of the Notice of Appeal which relates to a particular passage in the evidence. 

20	Turning to those parts of the “bias document”, if we may so call it, which we have not addressed so far, very briefly in this perhaps rather extensive judgment for a Preliminary Hearing, we have dealt with the point about the alleged witness as to Mr. Galloway’s working while sick.  Mr. Galloway has made two points about the appointment to the post of Senior Engineer of Mr. Taylor, that is Issue 7.  The two points are that, firstly, the Tribunal should not have made the finding which they did about external advertisement of that post in paragraph 60 and 61; to which we would respond that those are findings of fact which do not appear to us arguably undermined by Mr. Galloway; repeating to us his version of what happened.  Secondly, he refers to the lack of any internal advertisement of the post through the proper channels and in compliance with the Trust’s own policies.  He says here, and in other areas, that there were breaches of the Trust’s own policies.  Breaches of policies do not necessarily result in a finding of race discrimination.  It is up to the Tribunal in each case to decide whether: 
(a) there is differential treatment and 
(b) if there is, whether they accept the explanation for that differential treatment by the Employers and if not whether they then infer that the reason for the differential treatment is the reason of race.  

21	So far as internal advertisement was concerned, the Tribunal came to the conclusion, despite any breaches of policy, that they were satisfied that Mr. Wagman had not sought to withhold from Mr Galloway knowledge of the advertisement of this post; and the Tribunal found as a fact that the sending to Mr. Galloway of the re-structure document which gave rise to this post together with the draft advertisement and person and job specifications indicate to the contrary, as does the minute of a meeting on 4 June.  Mr. Galloway says that he never received those documents.  That may or may not be the case; we are perfectly happy to proceed on the basis of what Mr. Galloway tells us; but what mattered before the Tribunal, was whether these documents had been sent by the employers not whether they were received.  

22	Mr. Galloway raises an issue as to computers; he has taken us to documents showing that he was asked to bring a computer from home when it was unnecessary for him to do so because, very shortly after that request, there was in fact a new computer provided.  These details of the evidence are not details which can be examined by the Employment Appeal Tribunal unless they reveal any perversity on the part of the Tribunal.  They do not.  Again the issue of the computers was dealt with in detail by the Tribunal who found against Mr. Galloway on the facts.

23	We think that we have now dealt with all the specific matters raised by Mr. Galloway;  but if not we would state generally, at the end of this judgment, that we have certainly considered all the matters raised in the bias document, in the Notice of Appeal and in the skeleton which Mr. Galloway has provided to us.  We are quite satisfied that none of the matters he puts forward give rise to any arguable ground of appeal.  We have also considered the authorities to which Mr. Galloway has referred us.  We do not need to deal with them in this judgment.  They do not help to create a position in which there is an arguable ground of appeal.  In our judgment there manifestly is not.  For those reasons this appeal must be dismissed.